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Boston Red Sox, Boston Globe, and NESN: What Happens When One Entity Owns them All?

Fascinating piece by Ian Donnis of the Boston Phoenix about the "growing synergistic cartel" of the Boston Red Sox, the Boston Globe, and the New England Sports Network (NESN), the regional cable station that broadcasts over 150 sox games. (Donnis, "Inside Baseball," Boston Phoenix, Aug. 4, 2005). The common link among the three is the New York Times Company, which owns the Globe and which is a minority investor (17 percent) in the Red Sox, which itself owns 80 percent of NESN. Donnis examines whether this affiliated relationship might affect purportedly "objective" news coverage of the team. He notes, for instance, a Globe editorial in 2002 that favored an enclosed free-keg zone on Yawkey Way next to Fenway Park. The Globe did not disclose its financial stake in the matter. He also reveals other circumstantial facts, such as Globe (and NY Times) executives receiving World Series rings, and how the Red Sox and Globe use the same law firm and bank. Of course, none of these actions appear to reflect "illegal" activity, but collectively, they illuminate increasing consolidative behavior among corporate entities, and how that trend appears to be affecting the sports world.

For more on this story, Ian Donnis will be interviewed tonight on David Frank and Scott Gilefsky's Sports Court, which airs on Sporting News Radio Boston 1510 AM at 5 PM, and which may be heard live at this link. David and Scott will also be interviewing Attorney Jon Kamin, who will discuss the recent plight of Harry Bowers, an autistic 9-year old from Pittsburgh whose little league coach paid another player $25 to throw a baseball at Bowers' head so that the coach wouldn't have to play Bowers in a game. It's depressing to think that someone like this little league coach could actually exist.

Believing that an assistant little league coach for Methuen (Massachusetts) was communicating "illegal" instructions to his players in Spanish, an umpire in the state's little league tournament for 13-14 year olds decreed that Spanish would not be spoken thereafter in the game, otherwise the offending team would forfeit (Silva & Mishra, "Team Forced to Listen to Umpire's Call," Boston Globe, July 30, 2005). This decree occurred when Methuen was leading 3-1 over Seekonk, and assistant coach Domingo Infante gave the following instruction to his team's pitcher: 'Tira lo bien!," which signaled to the pitcher to throw a good pick-off throw. Immediately after the pitcher failed in his pick-off attempt, the umpire called time-out and said, in effect, nadie puede hablar español en este juego, although I imagine his words were more like, "nobody can speak Spanish in this game."

This decree did not bode well for Methuen, since its pitcher spoke very little English. Perhaps not surprisingly, Seekonk went on to defeat Methuen, though Methuen remains alive in the tournament. But to make matters worse for Methuen, relevant little league rules only allow for formal protests to be filed during a game -- a rule which Methuen found out after the game, when it tried to file a formal protest.

Although the game will remain on the books, public outcry is growing. John Carroll, vice president of Methuen Little League, finds that "this is absolutely ridiculous. Everyone in Little League . . . should be ashamed. To treat kids this way, in this day and age, is outrageous." Even Colombian-born Red Sox shortstop Edgar Renteria has chimed in. ''They cannot tell the kids not to speak Spanish . . . Nobody can tell me not to speak in Spanish. No matter how you speak -- English, Spanish, Japanese, whatever -- as long as you go on the field, work hard, and play hard, that's it."

Surprisingly, a spokesman for the National Little League said the umpire will not be punished: "The umpire simply overstepped his authority, and there was no malicious intent." This means that the umpire will continue to work in the state tournament.

I wonder what would have happened had the assistant coach been communicating through signs? Would the umpire have banned signs too? Along those lines, what is the difference between signs and a language that the other team may not understand? I don't see any difference. But I guess the umpire did, and he managed to offend a lot of people in the process.

Update 7/31/05: The umpire has now been suspended for the rest of the year.

Two months ago, we detailed CBS-4 sportscaster Bob Lobel's libel suit against syndicated cartoonist Darby Conley, who is best known for his "Get Fuzzy" cartoon. The lawsuit arose after Conley published a controversial Get Fuzzy cartoon, which appeared in over 450 New England newspapers. The cartoon featured a dog, cat, and their owner watching Lobel on TV, and the dog says "Is this sportscaster . . . drunk?," to which the owner replies, "Lobel? Who knows?," leading the cat and owner to get into argument, with the dog finally saying, "Guys, guys! How can you fight while there's a drunk guy on TV?" Conley's co-defendants in the suit are United Feature Syndicate and the New Bedford Standard-Times.

In an July interview with Boston Magazine, Lobel claimed that his unique, yet largely endearing on-air style is primarily the result of attention deficit disorder. He also exclaimed: "I don't even drink. I used to. I used to go out between shows, but that was 15 years ago . . . There are times I slur my words. There are times I make mistakes, but it's not because I'm drunk."According to Attorney David Frank, news editor of Massachusetts Lawyers Weekly and co-host of Sporting News Radio's "Sports Court" program (which airs this Sunday at 5:00 PM in Boston -- live on-line feed), a settlement may be forthcoming. In a recent article in Massachusetts Lawyers Weekly (subscription), Frank noted that attorneys for the parties are constructively working towards a mutually-acceptable agreement.

If Lobel v. Conley settles, it will be interesting to see how much Lobel receives. What do you think would be fair compensation for being the victim of these offensive cartoon animals, assuming you were New England's most recognizable--and highest paid--sportscaster, and assuming the cartoon appeared all over New England? Unfortunately, I have not found the amount of damages that Lobel is seeking, although if you know that, shoot me an e-mail at mmccann@law.harvard.edu. For now, we'll just have to speculate.

Perhaps not surprisingly, Bob Goodenow is no longer the head of the NHL players union. After losing an entire season, the players agreed to a deal that many feel is unfavorable. It is unclear how the internal negotiations proceeded, but Goodenow likely was unhappy being forced to agree to a salary cap.

In the States, some people trying to keep their jobs continued the Moral Crusade Against Performance-Enhancing Drugs. The Chairmen of the US House Government Reform Comm. sent a letter to the NHL and the NHLPA blasting the two sides for the weak drug testing regimen outlined in the new CBA.

The NHL's new plan, which the league forwarded to Congress on Monday, fails to account for the myriad performance-enhancing drugs, doesn't provide for an independent administrator and fails to require enough testing, congressmen Tom Davis and Henry Waxman wrote yesterday in a letter to the league and its players' union.

"All of these deficiencies could undermine public confidence that the NHL is free of performance-enhancing drugs," the congressmen wrote.

***

While the U.S. bill calls for athletes to be tested at least five times a year, the NHL drug program calls for a maximum of two tests a year with no minimum, the lawmakers said.

"First, a requirement of 'up to' two tests per year is no requirement at all," Davis and Waxman wrote. "Under such a policy, some players may not be tested at all. Second, the provision caps testing frequency at two per year. Thus, even if a player is tested, he can be certain that he will not be tested again after the second test."

(Westhead, "NHL drug tests attacked," Tor. Star, 07/28/05). Will Congress follow this up with legislation? This certainly would not be welcome news for the other professional sports leagues, which have all adopted more stringent policies in hopes of heading off a legislative attack. But Commissioner Bettman and hockey are not going to risk their new 600-page CBA, so Congress may be forced to put its money where its mouth is.

In my study on NBA player arrest and age/education, I added an education-level comparison of arrested NBA players to all current NBA players. There are some rather striking results that appear to amplify the study's findings.

Most notably, though 41.1 percent of all NBA players went to college for 4 years, 57.1 percent of arrested NBA players went to college for 4 years. In contrast, though 14.8 percent of all NBA players either did not go to college or went for one year, only 9.6 of arrested NBA players share the same educational background.

Now that the NBA and NHL have labor peace for the foreseeable future, those interested in sports and labor law will turn their attention to the NFL and Major League Baseball. Today, I will look at the potential issues in the NFL's next labor agreement. Next month, I will examine the hurdles that baseball must overcome.

The NFL is seen today as having the best labor agreement among the major sports, but this was not always the case. A series of labor problems and work stoppages culminated in the 1987 strike, where the owners hired replacement players and dealt a severe blow to the players union. (For an excellent summary, see Staudohar, "The football strike of 1987: A question of free agency," Monthly Labor Review, Aug. 1988). The strike did not achieve the players' goals of less restrictive free agency and higher salaries, but an antitrust lawsuit filed the same year was settled in 1992, with the institution of free agency as fans know it today.

The next year, the NFL and players signed the collective bargaining agreement still in place today. The agreement is considered exemplary because it pools almost all of the league's Defined Gross Revenues (DGR) (which includes TV, ticket sales, sponsorship, etc.) and creates a salary cap based on a percentage of those revenues (approx. 65%). This creates remarkable parity in the league.

If the agreement is so ideal, why would the sides want to risk a return to the labor problems of the 70s and 80s? Obviously, both the owners and the players would prefer an easy settlement, but issues exist that could divide the two sides. One can be found in the computation of the DGR. Owners in smaller-market teams would expand the formula to include a greater percentage of local team revenue, such as the Dallas Cowboys' sponsorship agreement with Pepsi. Players would like this because it would increase the total amount of DGR, but owners would then want to decrease the percentage guaranteed for player salaries. In addition, the owners would like a break for any debt obligations they have due to the construction of new stadiums.

Another possible area of disagreement comes from continually-escalating rookie salaries. Just a few days ago, Alex Smith signed the richest rookie contract ever -- $50M, with $24M guaranteed -- despite being considered by many as the "default" number one pick in a year devoid of top-notch prospects. ("NFL top-pick Alex Smith settles contract," S.F. Chron., 07/27/05). Owners may wish to see a rookie salary scale, similar to the one in the NBA, put in place to protect themselves from out-spending one another. Veterans could be in favor of these restrictions -- after all, more money spent on rookies means less is available for older players. But player agents, many of whom have considerable influence, will be against any attempt to limit the salaries of their newest clients. Moreover, it could be seen as a measure to drive down all player salaries, which the NFLPA would certainly oppose.

Finally, I have to believe that in some future negotiation, the players are going to fight for guaranteed contracts. The NFL is the only professional league that does not guarantee its contracts. Signing bonuses are guaranteed, and players can negotiate for a guarantee (like Shawn Alexander has done), but typically, an NFL team can cut a player for almost any reason and not be on the hook for the player's salary (and money never paid does not count against the salary cap).

For obvious reasons, many players do not like this. This is the main issue behind Terrell Owens' dispute with the Eagles -- why should he have to honor his contract if the team does not have to? Owens' new agent, Drew Rosenhaus, has attracted many new clients with this philosophy -- enough that other players may start caring about the issue of guarantees. As one player said, "Drew is doing far more for us than our own union." (See Cole, "Hardball football agent," Mia. Herald, 07/17/05).

Guaranteeing contracts, though, is not without problem. As explained by the NFLPA's general counsel, "[I]f I could wave a magic wand and, hereafter, all contracts that are signed are guaranteed, 80% of the players in this league would have one-year contracts because the clubs wouldn't want to take a chance on injury." (Christl, "Agent of change," Mil. Journal-Sentinel, 07/26/05). The union argues that players are better off with guaranteed bonuses and long-term contracts. It is unclear, though, if a majority of the players will agree, especially after listening to Rosenhaus.

Regardless, the owners will not give up on this issue without a fight. After all, injuries in football occur more frequently, and are often more severe, than in other sports. Football players also age more quickly than in other sports, turning a good player into a non-factor almost overnight. The owners will only guarantee contracts in exchange for major concessions from the players (i.e., a decreased salary cap). Whether in this bargaining session, or in the future, the issue of guaranteed contracts has the potential to cause a significant dispute between the league and the union.

At least one reporter has sources claiming the new NFL agreement will be signed within 60 days. (Felger, "NFL Notes," Bos. Herald, 07/24/05). If any of the issues discussed above becomes a factor, though, the negotiation could turn ugly, and a new agreement could be postponed until closer to the expiration of the current CBA in 2007. The NFL remains the gold standard of labor peace in professional sports, but the question remains: For how long?

Manny Ramirez and His Attempt to Show Why Guaranteed Contracts Are Bad for Sports

A day after Boston Red Sox outfielder Trot Nixon strained an oblique muscle--an injury that placed him on the disabled list this morning--his teammate, Manny Ramirez, asked out of the lineup for this afternoon's game against the Tampa Bay Devil Rays. Ramirez insisted on taking today off even after his manager, Terry Francona, requested that he instead take a day off when the team isn't so short-handed. Ramirez declined Francona's request. His reason? He needed rest -- even though the team already has a scheduled day off tomorrow. So the Red Sox lineup today features Adam Stern (he of 2 major league hits) instead of Ramirez, who leads the majors in RBIs and who in 2001 signed an 8-year, $160 million contract--an amount fully guaranteed.

This isn't the first time "Manny was just being Manny." Last week, he reportedly asked the Red Sox to trade him, because he was tired of the "intrusive" Boston media--the same Boston media he invited into his home earlier in the month to take pictures of his son's bedroom. He is also known to sometimes not run out grounders and fly balls.

Even though Manny Ramirez is one of the best hitters in baseball, and perhaps one of the best hitters in the last 25 years, the Red Sox can't trade his contract, which is the second most lucrative in baseball after Alex Rodriguez and his $252 million deal. The Red Sox even placed Ramirez on waivers following the 2004 season, but no team claimed him.

Hopefully Manny enjoys today's game from the dugout, while he collects approximately $135,803 (annual salary of $22,000,000 divided by 162 games) to not play in it.

One of the most interesting parts of the new NBA agreement is the so-called 'Allan Houston Rule', which allows teams to waive one player prior to October 1, without having to pay any further luxury tax on the player's contract. It is called the Allan Houston Rule, because the Knicks will certainly use it to rid themselves of Houston, who is often injured and is still owed $40 million. Michael Finley, who is owed $51 million by the Mavericks, is another potential candidate.

This is a very odd idea. Under the rule, a team that waives a player must still pay the entire contract, even if the player signs with another team. Thus, Houston is guaranteed to receive $40 million worth of checks from New York on top of the money he will receive if he signs with another team. So, in essence, he will be getting paid twice (though his second check will "only" be about $5 million a year). In addition, New York receives no salary cap relief. Thus, the team pays the player a full salary and for salary cap purposes it is like the player is still on the roster.

So why would any team do this? The answer lies in the incredibly stringent NBA luxury tax. If league-wide player salaries exceed 61% of basketball-related income (ticket sales, television rights, concessions, sponsorships, etc), then each team must pay a $1 tax for each $1 it is over the 61% threshold. For a team like New York, whose payroll was about $40 million over the threshold last year, this is a lot of money. Moreover, teams not over the 61% threshold can hold onto the exemption until a year that they are, which in essence gives them free reign one year to spend as much as possible under the cap without paying any luxury tax penalty.

For more, see these excellent articles by ESPN's Marc Stein ("Most teams prefer tax to tax loophole,"7/25/05; "Allan Houston Rule FAQ," 7/25/05). It remains to be seen how teams will take advantage of this one-time exemption, but it might make things interesting in player deals over the next few years.

Below, Mike has written a great post (7/17) about the age limit reported to be in the new hockey CBA, as well as a legal strategy for defeating such an age limit. It appears that TSN Canada was wrong, though, so that legal argument will have to be saved for another day. As the NHL describes the new agreement:

Who is eligible for selection in the Entry Draft?

Draft eligibility rules will remain unchanged from the expired CBA (all players must be age 18 by September 15 in the year in which the Draft is held).

Thus, it appears that baseball and hockey will remain the two major leagues without age limits. Not coincidentally, they are also the two leagues with developed minor league systems.

My brother Bill brought to my attention an interesting piece by Barry Svrluga of theWashington Post regarding Robert F. Kennedy Stadium, home of the Washington Nationals, and home of the false field dimensions. (Svrluga, "Errors in the Outfield," Wash. Post, 7/22/05). After listening to Nationals' third-baseman Vinny Castilla complain that the left-center field power alley was significantly farther from home plate than the listed distance of 380 feet, Svrluga decided to measure the distance. He found that the actual distance was 394 feet. Before publishing his result, he let the Nationals measure it for themselves, and the team confirmed that the listed distance was indeed off by 14 feet; the team also found that the right-center power alley was off by 15 feet (listed as 380 feet but actually 395 feet).

Given the spaciousness of RFK stadium--which just re-opened after a 24-year hiatus upon the Expos moving to D.C.-- it is not surprising that of all 30 major league ballparks, the fewest number of home runs have been hit there this season. It is also not surprising that the National's best hitter, Jose Guillen, has hit 18 of his 19 home runs on the road. Similarly disparate, Brad Wilkerson has 4 homeruns and 26 RBIs on the road but only 2 homeruns and 9 RBIs at home.

Of course, inaccurate dimensions have been identified at other ballparks. For instance, in 1995, it was determined that the left-field foul of Fenway Park was located 310 feet from home plate, rather than the listed distance of 315 feet--as it had been assumed since 1936.

Aside from embarrassment, might there be a legal risk for teams that mistakenly list their ballpark dimensions? More specifically, might a player who signed with a team under a certain set of employment assumptions later have recourse if those assumptions prove untrue? The most plausible claim may be "misrepresentation," which is an unambiguous, false statement of fact that is material and induces a party to consent to a contract. If a court identifies that one party has been misrepresented, the aggrieved party can have the contract voided. Aggrieved parties may also be entitled to reliance damages.

Have the Nationals' hitters been misrepresented? Well, first consider that when teams pursue free agents, ballpark dimensions are likely relevant characteristics, especially when free agents distinguish between offers of similar compensation. This is particularly true for players thinking about their next contract: if you are a hitter and sign to play in a pitchers' ballpark, your statistics may suffer and your next contract may not be as lucrative.

Second, consider that although major league contracts are guaranteed, players still have myriad incentives to perform well. There are objective incentives, such as contract incentives and endorsement opportunities, as well as subjective ones, such as positive feedback from fans and media (or, its converse: avoidance of negative feedback from fans and media), as well as a desire to craft a memorable career and establish some kind of legacy. Indeed, we have seen numerous players sign fantastically-lucrative contracts only to become miserable after not performing well (e.g., Mike Hampton after signing an 8-year, $121 million contract with the Rockies) or not performing as well as expected (e.g., Mo Vaughn after signing a 6-year, $80 million deal with the Anaheim Angels). Therefore, even if a player isn't concerned about his next contract, he still doesn't want to be misled into a signing to play for a team where he will not perform well.

But is the difference of 15 feet really going to affect where a hitter chooses to play? The answer might be "yes": consider remarks by Tigers outfielder Bobby Higginson, who, in 2002, candidly predicted to the Philadelphia Inquirer that Comerica Park's pitcher-friendly dimensions would deter free agent hitters from signing with the Tigers:

Higginson still sees the place as an unattractive destination for free agent hitters. "It's going to be tough to get players to come here, especially hitters," he said. "The ballpark is entirely too big, and they don't want to admit it. You might get some pitchers to come here, if you're winning. But you won't get hitters. It's not even a question. No one has ever come here and said it's not too big. It's a joke. It's Coors Field with no carry.

Given Higgenson's remarks, the correlation between player performance and future contracts, and the recognition of a player's desire to perform well even after signing a guaranteed contract, we can probably conclude that 15 feet would be a relevant characteristic for many players.

But is 15 feet legally relevant? That is, when Nationals' third baseman Vinny Castilla--the National League's leader in RBIs in last season--signed with the team as a free agent, did the team misrepresent its employment offer to him? Or how about short stop Christian Guzman, who agreed to a 4-year, $16 million contract with the Nationals? Both players have struggled badly this season while playing in the unexpectedly spacious RFK Stadium, and both have been targets of fan and media scorn (although, to be fair, both have also struggled on the road).

The key would be whether 14 feet in left-center field and 15 feet in right-center field is "material" to the contract formation. In contract law, a misrepresentation is only "material" when one party so completely relied on a false statement in negotiation that the aggrieved party is excused from further performance of the contract. Materiality is thus a high threshold, and it would likely be difficult for any Nationals' player to meet. This is particularly true since, as Chris Needham of Capital Punishment notes, RFK Stadium dimensions were not finalized when many of the Nationals' free agent signings occurred.

Moreover, think about all the past players who might have been "materially misrepresented" about their ballparks and who did not seek legal recourse. For instance, consider all the pitchers the Red Sox signed between 1936 and 1995 who thought the left field wall was 315 feet away, rather than the real distance of 310 feet. On the other hand, there is probably difference between those pitchers and the hitters that the Nationals recently inked, since those hitters signed to play in a newly-configured ballpark that hadn't been used for major league baseball since 1971. As a result, Castilla, Guzman et. al didn't have access to important homerun trend data and other ballpark metrics that may assist players in distinguishing similar offers. In short, they were more reliant on the Nationals than the pitchers were of the Red Sox.

But consider the potential scope of these types of claims. For instance, how about when a team changes its ballpark's dimensions, and brings in the fences? In 1995, the Kansas City Royals brought in Kaufman Stadium's fences by 10 feet and lowered the outfield walls by 9 feet--so was pitcher Mark Gubicza "misrepresented" about his employment conditions when he re-signed with the Royals as a free agent in 1994? I suspect it is highly doubtful that a court would consider that a material misrepresentation (and, of course, the statute of limitations would bar such a claim today).

In sum, there appears to be only a small chance of a Nationals' player successfully suing his employer for misrepresentation. Moreover, and to his credit, Nationals' President Tony Tavares has told the Washington Post that players hurt by RKF's dimensions would be compensated in their next contract negotiation:

"And if we're doing a contract with Jose [Guillen], and I'm still here, I'll say, 'Jose, those count as home runs,' " Tavares said. "He can add them to his totals, and we'll negotiate from there. I know this isn't a hitter's ballpark."

But will other teams do the same? And what happens if Tavares isn't still there?

Following the new collective bargaining agreements in the NBA and NHL, as well as last month's NBA draft, a great deal has been written on the wisdom and legality of age limits in professional sports. Mike (as always) has convincingly argued that age limits are both illogical and in violation of antitrust law. As he points out (7/20, 6/28), there seems to be no correlation between player "experience" (as measured by college attendance and age) and success in the league or trouble with the law. Moreover, statistically, younger players show that they can hold their own, if not excel, in the professional league.

But that is not the end of the story. The NBA's primary concern is not the players. Its first priority is the well-being of the league. David Stern and the other officials at the NBA must work to protect the league's image. The NBA must produce a product that will attract fans on a consistent basis. There is obviously a great deal of debate over how best to achieve this. The argument I hear most often against the age limit is Lebron James. An age limit would have kept him out an extra year and he was good for the NBA. Agreed, if James and the Cavaliers had been in the Finals this year, ratings would have far exceeded the embarrassing 8.2 generated by the Pistons and Spurs. But this does not necessarily mean that 18 year-olds are good for the sport. If they were, then why would the league and the owners (all shrewd business executives), push so hard for an age limit?

The NBA may think its product would be better without 18 year-olds for any number of reasons. For instance, perhaps fans do not like the idea of kids coming out of high school and immediately making millions of dollars. After all, almost everyone in this country either starts work at a low wage, or goes to college (and grad school) before entering the work force. Whether in the form of outright jealousy, or a subconscious displeasure, maybe fans would like to see athletes "earn" their right to make millions. In this sense, the NBA is uniquely positioned among the main leagues. Baseball players may be signed to large contracts out of high school, but in almost every case, fans will not see them for several years, after they have paid their dues in the minor leagues. NFL players must go to college and NHL players, while not faced with an age limit, (1) make far less money and (2) do not have the same high profiles as NBA high-schoolers. After all, have you ever watched an NHL draft?

The counter-argument comes in the form of individual sports, such as golf and tennis. In those sports, a number of teenagers have turned pro and some have made millions of dollars before they even turned 18. Why aren't fans up in arms about these baby millionaires? I have never seen any research data on this phenomenon, but I do have some theories. One thing I do NOT believe is that race is the factor. If it was, then why aren't people up in arms about the Venus and Serena Williams (pro at 14) and Freddy Adu (pro at 15)? Race alone cannot be the answer.

One possibility is that tennis and golf, the "country club" sports, are seen as more respectable than basketball. Fans may be more willing to tolerate younger players in these "dignified" sports that have well-established rules of etiquette (i.e., quiet for the serve and self-penalization in golf). Tuning into SportsCenter, a fan's view of basketball is dunks, show-boating and tattoos.

Along the same vein, no one has ever done a breakdown of the ages of golfers and tennis players that have been arrested. For the most part, the mug shots of golfers and tennis players do not regularly appear on the nightly news. The better overall image of these sports may cause fans to be more accepting of younger players -- after all, there is far less chance that they will be "corrupted."

If money and the negative image of the sport are not the answer, then perhaps it is basketball-related. Despite basketball's incredible popularity (witness March Madness), the NBA's television ratings suffer in comparison to baseball and often, college basketball. Even though played in the summer, when children are out of school, the NBA Finals has attracted more viewers than the World Series only once, in 1998 (Michael Jordan's final title). In the years since, the NBA's ratings have consistently suffered in comparison to other sports. There are numerous potential reasons for this decline, including a decline in basketball "fundamentals." In the place of mid-range jumpers and team offense are slam dunks and one-on-one dribble moves. Many argue that this makes the game more exciting, but when more people watch "Dancing with the Stars" than your championship series (as happened this year), it is cause for alarm. It is by no means certain that this can all be traced back to the biggest basketball stars skipping valuable college training, but the suggestion does not boggle the mind.

These theories may all be wrong. Certainly, the NBA likes having a "free" development league (the NCAA). Moreover, the NBA owners needs the age limit to offer protection from themselves (and drafting on potential, not achievement), just as the salary cap protects them from excessive spending. Ultimately, though, it does not matter why the NBA and the players decided on an age limit. Opponents can argue that the age limit will not have a positive impact on the league's image, or that it will even have a negative impact, but legally, the specific rationales are not relevant. Because the limit was collectively bargained for in a fair labor negotiation, it does not violate the law. Even if the NBA is a unique market (which is by no means certain), the age limit falls under the labor exception to the antitrust laws. As the 2nd Circuit correctly held in Clarett, this pre-empts any possible antitrust violation. Barring a fundamental change in labor law, the debate over age limits will largely be one of sports business, and less one of sports law. And at least for now, Stern and company feel that business will be better without the next Lebron.

In addition to adding several names to the list of NBA players who have been arrested, I added statistical data for only those NBA players who were arrested while still playing in the NBA. I also added statistical medians. The new and expanded chart is available here.

Lost amid the endless media coverage of Judge John G. Roberts, Jr.'s' nomination to the U.S. Supreme Court is perhaps the most salient question: What are his views on sports law? Okay, maybe that's not number one on the list of questions that Senators Leahy, Kennedy, Schumer et. al are preparing to ask, but it's something that we are interested in.

So what do we know about Judge Roberts and his views on sports law? Let's start as early as possible in his life. We know that he was on the football, wrestling, and track teams at La Lumiere, a then all-boy Catholic High School in Indiana (it is now co-ed). Although he described himself as a "slow-footed halfback," Roberts was captain of his football team. According to one of his former teachers at La Lumiere, Roberts was among the team's players who were "real good, real competitive." One of his former classmates was similarly effusive of Roberts' athletic skill and personal traits. According to Carey Dowdle, "He was a quiet leader; he was a great wrestler. I played team sports and so I know that wrestling was an individual sports and he thrived in this sport where it was strictly his talent against somebody else's."

Therefore, it appears that Judge Roberts is--at the minimum--interested and skilled in sports. From that, we might cautiously extrapolate that he would be more willing to take a sports law case on writ than perhaps a Justice with less of an interest in sports. So far, then, Judge Roberts is looking good.

Let's turn to his professional career. We know that as a litigation partner at Hogan & Hartson, he successfully defended the National Collegiate Athletic Association ("NCAA") against a lawsuit by Renee Smith, a law school student who alleged that the NCAA, when it refused to allow her to participate in postgraduate intercollegiate volleyball, discriminated against her because of her sex. NCAA v. Smith was ultimately heard by the U.S. Supreme Court in 1999, and the Court had to decide whether the NCAA's receipt of dues from federally-funded colleges and universities made it subject to Title IX. In a unanimous decision, the Court agreed with Roberts that such funding should not make the NCAA subject to Title IX. Writing for the Court, Justice Ruth Bader Ginsburg held that "[e]ntities that receive federal assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX; entities that only benefit economically from federal assistance are not."

Should we interpret Judge Roberts' defense of the NCAA as an indicator of his views on sports law? On one hand, his defense of the NCAA, along with numerous other industry/corporate clients, might suggest a "pro-management" viewpoint. And there is something to be said for "client capture," where an attorney gradually embraces a particular viewpoint on a legal issue as he represents additional clients with a similar agenda. On the other hand, Roberts had a job to do: represent the NCAA as vigorously as possible within the confines of the law. And client advocacy is the whole point of being an attorney, regardless of the attorney's own views. For that reason, we should always be leery of those who make philosophical deductions from another's client work.

So what do we really know about Judge Roberts and his views on sports law? Unfortunately, like with many of his positions, we're probably not going to know for sure until he's on the Court. On the other hand, the fact that he played multiple sports in high school and then later represented the NCAA as an attorney suggests that he has some expertise and interest in sports law. Moreover, the fact that he is unfailingly described as "fair" and "open-minded" indicates that he might more favorably view sports law as a legal topic than others on the Court. And from our perspective, those are good things.

Some persons have e-mailed me claiming that my study on NBA player arrests and age/education is irrelevant to the NBA's efforts to raise the Draft entry age. They claim that it's really about player performance--that prep-to-pro players have struggled in the NBA.

In striking contrast, David Stern has repeatedly rationalized a higher age floor on the grounds that players need more "life experience" and "education" to avoid off-court problems (be them criminal or otherwise) as an NBA player. To prove that, let's turn to his actual remarks:

"[Stern] said an age limit would 'allow kids another reason to have another year or two to grow, to deal with the stress, the discipline and really, the life experience that would be helpful. I'd like to think that somebody would react better at 20 than 19.'" Washington Post (May 10, 2005)

"'Because even if they might not get the same intense training from a basketball perspective … they will get a year of experience, a year of life experience, a year of education,' said Stern." Roanoke Times (July 6, 2005)

Perhaps more revealing is this exchange between Armen Keteyian of HBO and Billy Hunter in the same interview that I was a part of:

ARMEN KETEYIAN: Billy Hunter is the head of the NBA player’s union and in the process of negotiating a new labor agreement with the league. He’s also on the verge of giving David Stern what he wants—a restriction on high schoolers going directly to the pros.

BILLY HUNTER: I'm personally and philosophically against it. But we're trying to I guess achieve a global deal, and that there are many elements to this-- to this package. And that that in and of itself probably would not hold up an agreement.

ARMEN KETEYIAN: Hunter insists that until a deal is done nothing is final, but it’s clear that the momentum for now is on the side of the commissioner.

BILLY HUNTER: I think that he and the owners feel that they have to, quote, "give the fans something." There are these ancillary issues that fans get distracted by. Let's say for example if you identify the--the brawl that occurred between Indiana and Detroit. And so the idea is, what can you give the fans to assuage them? To convince them that, quote, "you're in control of the game," and that it hasn't gotten out of hand? And so--

ARMEN KETEYIAN: The proverbial pound of flesh?

BILLY HUNTER: Yes. That's right. So in this instance I think it's an age limit.

ARMEN KETEYIAN: You think that's really directly related to what happened in Detroit?

BILLY HUNTER: Detroit is just one aspect of it. Some individuals have difficulty with the fact that so many young players have tattoos or have-- cornrows or they’re saying that they’re a bunch of-- of-- spoiled millionaires. The problem with may not be with 18 year olds, but if we can make that the resolution, than so be it.

In case you're looking for something to do this Sunday at 6 P.M., I'm going to be interviewed on Sporting News Radio Boston (1510 The Zone). The program is called Sports Court and it is hosted by David Frank and Scott Gilefsky, both of whom are attorneys in Massachusetts. We will discuss some of the recent posts on this blog, including my study on NBA player arrests and age/education. If you are interested, here is the link to "listen live." I hope you have a chance to listen, as I think it will be a great discussion.

NBA Players That Get In Trouble With the Law: Do Age and Education Level Matter?

Among the claims often expressed for raising the age floor in the NBA is that prep-to-pros players are more likely to get in off-court trouble, since they lack a college education and, as David Stern puts it, "life experience." One way to test this idea is to study NBA players that have actually gotten in trouble with the law.Were they college educated?Were they young and impressionable? I did a little bit of research, and while I cannot ensure that the following chart reflects a complete list, it is quite extensive and likely covers most of the recent NBA player arrests.The chart reveals the arrested players’ level of education and their age and level of professional experience at the time of arrest.Disclaimer: obviously, an arrest does not mean that someone is guilty of anything; that’s what a trial is for.But, it might a good proxy for “getting in trouble with the law,” particularly given the reputational cost often absorbed by an arrested player, his team, and the NBA.

Arrested NBA Players: Education, Age, and ExperienceMichael McCannAssistant Professor of Law, Mississippi College School of LawLL.M., Harvard Law School (2005)J.D., University of Virginia School of Law (2002)B.A., Georgetown University (1998)

NAME

CHARGE

EDUCATION

AGE WHEN ARRESTED

SEASON IN NBA WHEN ARRESTED

Greg “Cadillac” Anderson

Possession of Cocaine and Intent to Distribute

4 Years of College

33

10th

Gilbert Arenas

Unlawful Possession of Firearm

2 Years of College

21

3rd

Darrell Armstrong

Battery of Female Police Officer

4 Years of College

35

10th

Ron Artest

Assault and Battery

2 Years of College

25

6th

Charles Barkley

Disorderly Conduct

4 Years of College

28

8th

Erick Barkley

Trespass

4 Years of College

23

2nd

Tony Battie

Battery of Police Officer

3 Years of College

23

2nd

Mookie Blaylock

Marijuana Possession

4 Years of College

30

7th

Kobe Bryant

Sexual Assault

0 Years of College

24

7th

Rodney Buford

Marijuana Possession

4 Years of College

22

1st

Jason Caffey

Assault Causing Bodily Harm

4 Years of College

30

8th

Marcus Camby

Marijuana Possession

3 Years of College

23

2nd

Sam Cassell

Assault Causing Bodily Harm

4 Years of College

33

11th

Keon Clark

Marijuana Possession

4 Years of College

27

5th

Derrick Coleman

Driving While Under the Influence

4 Years of College

35

13th

Tony Dumas

Assault on Pregnant Woman

4 Years of College

23

2nd

Richard Dumas

Crack Cocaine Possession

3 Years of College

29

3rd (was retired)

Dale Ellis (1)

Domestic-Violence Assault and Resisting Arrest

4 Years of College

29

7th

Dale Ellis (2)

Domestic-Violence Assault

4 Years of College

41

17th (was retired)

Marcus Fizer

Unlawful Possession of Firearm

3 Years of College

24

3rd

Joe Forte (1)

Marijuana Possession and Unlawful Possession of Firearm

2 Years of College

23

2nd

Joe Forte (2)

Driving While Under the Influence

2 Years of College

23

2nd

Steve Francis

Driving While Under the Influence

3 Years of College

23

3rd

Gary Grant (1)

Assault, Battery, and Disorderly Conduct

4 Years of College

35

12th

Gary Grant (2)

Drunk Driving

4 Years of College

36

13th

Eddie Griffin (1)

Marijuana Possession

1 Year of College

21

3rd

Eddie Griffin (2)

Assault with a Deadly Weapon

1 Year of College

21

3rd

Ed Gray

Marijuana Possession and Driving Under the Influence

4 Years of College

24

2nd

Darvin Ham

Battery of Wife

3 Years of College

28

5th

David Harrison

Assault and Battery

3 Years of College

22

1st

Alan Henderson

Unlawful Possession of Firearm

4 Years of College

32

11th

Dennis Hopson

Domestic Violence

4 Years of College

35

5th (was retired)

Zydrunas Illgauskas

Drunk Driving

NA (European Pro till age 22)

27

5th

Allen Iverson (1)

Marijuana Possession and Unlawful Possession of Firearm

2 Years of College

22

2nd

Allen Iverson (2)

Assault

2 Years of College

27

7th

Stephen Jackson

Assault and Battery

1 Year of College

26

5th

Anthony Johnson

Assault and Battery

4 Years of College

30

8th

Dennis Johnson

Assault and Battery

4 Years of College

43

14th (was retired)

Shawn Kemp

Drug Possession and Unlawful Possession of Firearm

1 Year of College

35

14th (was retired)

Jason Kidd

Domestic Abuse

2 Years of College

27

7th

Voshon Lenard

Reckless Endangerment and Illegal Use of Firearm

4 Years of College

27

6th

Brad Lohaus

Domestic Assault and Felony Theft

4 Years of College

40

11th (was retired)

Sam Mack

Marijuana Possession

4 Years of College

29

6th

Anthony Mason

Battery on Police Officer

4 Years of College

33

10th

Vernon Maxwell (1)

Unlawful Possession of Firearm

4 Years of College

29

7th

Vernon Maxwell (2)

Drug Possession

4 Years of College

30

8th

Vernon Maxwell (3)

Failing to Pay Child Support

4 Years of College

34

12th

Roshown McLeod

Battery of Pregnant Woman

4 Years of College

24

2nd

Terrance Morris

Driving with a Suspended License

4 Years of College

23

1st

Lee Nailon

Marijuana Possession

4 Years of College

25

1st

Tyrone Nesby

Battery

4 Years of College

26

4th

Michael Olowokandi (1)

Cohabitant Abuse, Robbery, and False Imprisonment

3 Years of College

26

4th

Michael Olowokandi (2)

Disorderly Conduct and Trespass

3 Years of College

29

7th

Jermaine O’Neal

Assault and Battery

0 Years of College

26

9th

Chris Porter

Marijuana Possession

4 Years of College

23

1st

Vitaly Potapenko

Disorderly Conduct

2 Years of College

24

4th

Robert Parrish

Marijuana Possession

4 Years of College

38

21st (was retired)

Ruben Patterson (1)

Assault

4 Years of College

25

2nd

Ruben Patterson (2)

Attempted Rape

4 Years of College

26

3rd

Ruben Patterson (3)

Assault of Spouse

4 Years of College

28

5th

Gary Payton

Driving While Under the Influence

4 Years of College

36

15th

Scottie Pippen

Battery of Woman

4 Years of College

29

8th

Olden Polynice (1)

Assault

3 Years of College

32

10th

Olden Polynice (2)

Impersonating a Police Officer and Disorderly Conduct

3 Years of College

36

13th

Olden Polynice (3)

Assault

3 Years of College

37

14th

Zach Randolph

Driving While Under the Influence

1 Year of College

22

3rd

Eldrige Recasner

Assault

4 Years of College

32

6th

Jason Richardson

Domestic Violence

2 Years of College

22

2nd

Isaiah “JR” Rider

Marijuana Possession

4 Years of College

25

4th

Cliff Robinson (1)

Marijuana Possession

3 Years of College

31

9th

Cliff Robinson (2)

Marijuana Possession

3 Years of College

34

12th

Glenn Robinson (1)

Disorderly Intoxication

3 Years of College

27

6th

Glenn Robinson (2)

Battery and Unlawful Possession of Firearm

3 Years of College

29

8th

Dennis Rodman (1)

Battery

4 Years of College

38

14th

Dennis Rodman (2)

Obstruction of Justice

4 Years of College

41

14th (was retired)

Dwayne Schintzius

Driving While Under the Influence

4 Years of College

35

8th (was retired)

Charles Smith

Vehicular Homicide and Driving Under the Influence

4 Years of College

23

2nd

Leon Smith

Criminal Mischief

0 Years of College

19

1st

Michael Smith

Assault and Drunk Driving

4 Years of College

29

8th

Latrell Sprewell

Driving With a Suspended License

4 Years of College

32

11th

Jerry Stackhouse

Assault

2 Years of College

28

8th

DeShawn Stevenson

Statutory Rape

0 Years of College

20

2nd

Rod Strickland (1)

Driving While Under the Influence

3 Years of College

31

10th

Rod Strickland (2)

Unlawful Entry

3 Years of College

33

12th

Damon Stoudamire

Marijuana Possession

4 Years of College

29

8th

Sedale Threatt

Failing to Pay Child Support

4 Years of College

38

14th (was retired)

Kurt Thomas

Assault of Spouse

4 Years of College

29

7th

Robert Traylor

Receiving and Concealing Stolen Property

3 Years of College

23

3rd

Gary Trent

Assault

3 Years of College

22

2nd

John Wallace

Harassment

4 Years of College

23

2nd

Rasheed Wallace

Marijuana Possession

2 Years of College

28

8th

Samaki Walker

Drunk Driving

2 Years of College

27

8th

Chris Webber

Marijuana Possession and Resisting Arrest

2 Years of College

25

6th

Bonzi Wells

Trespass

4 Years of College

25

4th

David Wesley

Reckless Driving

4 Years of College

29

7th

Chris Wilcox

Unlawful Possession of Firearm

2 Years of College

22

3rd

Jason Williams

Reckless Driving

4 Years of College

25

3rd

Jayson Williams

Reckless Manslaughter

4 Years of College

34

9th (was retired)

Sly Williams

Kidnapping, Rape, Sodomy, and Burglary

4 Years of College

44

7th (was retired)

Qyntel Woods (1)

Marijuana Possession

3 Years of College^

22

1st

Qyntel Woods (2)

Animal Cruelty

3 Years of College^

23

3rd

AVERAGE (all)

NA

3.2 Years of College

28.2 Years Old

6.4th Season

MEDIAN (all)

NA

4.0 Years of College

27.0 Years Old

6.0th Season

AVERAGE (without retired)

NA

3.1 Years of College

26.9 Years Old

5.6th Season

MEDIAN (without retired)

NA

4.0 Years of College

26.2 Years Old

5.3rd Season

84 Arrested NBA Players

* 48 w/4 college years

* 15 w/3 college years

* 12 w/2 college years

* 4 w/1 college year

* 4 w/0 college years

* 1 international player

All NBA Players:

41.1% went to college for 4 years

Arrested NBA Players:

57.1% went to college for 4 years

Meaning:

NBA Players with 4 years of college represent a proportionally higher % of arrested NBA players than all NBA players.

All NBA Players:

20.9% went to college for 3 years

Arrested NBA Players:

17.9% went to college for 3 years

Meaning:

NBA Players with 3 years of college represent a proportionally lower % of arrested NBA players than all NBA players.

All NBA Players:

11.1% went to college for 2 years

Arrested NBA Players:

14.3% went to college for 2 years

Meaning:

NBA Players with 2 years of college represent a proportionally higher % of arrested NBA players than all NBA players.

All NBA Players:

6.5% went to college for 1 year

Arrested NBA Players:

4.8% went to college for 1 year

Meaning:

NBA Players with 1 year of college represent a proportionally lower % of arrested NBA players than all NBA players.

All NBA Players:

8.3% did not go to college (American)

Arrested NBA Players:

4.8% did not go to college (American)

Meaning:

NBA Players who didn’t go to college and are American represent a proportionally lower % of arrested NBA players than all NBA players.

All NBA Players:

12.2% are international

Arrested NBA Players:

1.2% are international

Meaning:

International NBA players represent a proportionally lower % of arrested NBA players than all NBA players.

Update 8/9/05

: Dwight Jaynes of the Portland Tribune published an excellent column today concerning this study. (Jaynes, "Stern Has it Exactly Backward on College," Portland Tribune, August 9, 2005).Update 7/28/05

: I added an education-level comparison of arrested NBA players to all current NBA players. There are some rather striking results that appear to amplify the study's findings. Most notably, although 41.1 percent of all NBA players went to college for 4 years, 57.1 percent of arrested NBA players went to college for 4 years--meaning that players with four years of college represent a proportionally higher

percentage of arrested NBA players than all NBA players. In contrast, although 14.8 percent of NBA players either did not go to college or went for one year, only 9.6 percent of arrested NBA players share the same educational background--meaning that players with one or less years of college represent a proportionally lower percentage of arrested NBA players than all NBA players. Also, a continued thanks to the those who have analyzed this study by e-mail or on their blogs (including Professor Mark Godsey of the University of Cincinnati College of Law and Criminal Professor Blog).

Update 7/25/05

: I added statistics for the averages and medians of only those players who were arrested while still playing in the NBA (denoted as "without retired").

^ Woods played two years of junior college plus one year of community college

.

The averages and medians only count a player once, with the number averaged (e.g., even though he had three arrests, Vernon Maxwell’s education and age are only counted once as an average—4 years of college, 31 years old, and 9th NBA season)

.

Also, several of the players were arrested after their careers had ended, and that is noted by “was retired.”I used the last year in which they played as the numerical base.One could make a good argument that they should not be included, although I felt that their arrests still reflected poorly on them, their NBA teams, and the NBA itself (e.g., the Jayson Williams murder trial), and thus deserved to be included.

What does this data tell us?

First, college education does not appear to diminish the probability of a player getting in trouble with the law.In fact, some of the most notorious NBA players are those with college degrees, while many others have three years of a college education.That is not to say that a college education is a “bad thing,” but it does undermine the popular and paternalistic argument that “these kids need more schooling” because otherwise they would somehow be less-prepared for life as an NBA player.Just the opposite, actually, the data suggests that premiere high school seniors might be better off skipping college altogether, perhaps in order to avoid the disturbing external influences that afflict many college basketball programs, or perhaps because the average Division I college basketball player spends 40-50 hours a week playing games, practicing, attending team meetings, working out, and traveling – an arrangement that does not leave much time for “education” or “the college experience,” and that is a problem only worsened by most players having minimal financial resources (which, consequently, can instill a greater temptation on their part to be influenced by those who hang around the team and who always have plenty of money in hand).

On the other hand, the lack correlative power of education might only reflect intervening causes (such as personal and professional relationships) that can obscure the lessons one learned in school (or at home or with friends etc.). In that respect, I found some of the media coverage of the Kobe Bryant sexual assault case especially baffling. Here was a player who was considered the NBA's poster child for most of his first seven seasons, during which time he was routinely praised for his charity work with the Los Angeles Girls and Boys' Club, and then, at age 24, we are supposed to believe that he suddenly became a rapist because he didn't go to college seven years earlier?

Second, players appear more likely to get in trouble with the law towards the middle and end of their careers than at the start.This could be interpreted in a number of ways.For instance, it might suggest that the “pressures of being an NBA player” are more manageable at the start of one’s career, perhaps because the player is less autonomous and more reliant on the team.This interpretation is bolstered by the financial stake of NBA teams in facilitating the transition of their players from life as an amateur to life as a pro.Second, and related to the preceding interpretation, new NBA players are often surrounded by veterans in their late 20s and 30s who can monitor them and serve as de facto “big brothers.”The presence of these veteran players is obviously something distinct from the college experience, where the “veterans” are often just 20 or 21-years old, and are thus not likely to be as well-equipped in steering their 18 and 19-year teammates away from nefarious influences.Alternatively, the data may suggest that as the player accumulates wealth and notoriety, he is more likely to succumb to these “pressures.”

No matter the interpretation, it doesn’t appear that the recent decision by the NBA and NBPA to raise the age of NBA draft eligibility from 18 to 19 (or one year out of high school) will improve the overall law-abidingness of NBA players.If anything, actually, this data suggests that it might have the opposite effect.

I look forward to further analyzing this data with all of you.Your insight and interpretation would be much appreciated, and please use the comments section below.Or, if you have any additions/corrections to the list, please e-mail me (along with some type of substantiation for your claim) at mmccann@law.harvard.edu – I would appreciate it.

Also, Professor Todd Zywicki of George Mason University School of Law and The Volokh Conspiracy has a must-read take on this study, as he predicts that "raising the draft age by one year will likely just increase the corruption in high school and college basketball." Definitely check out his post, as it reflects upon this data in a completely different way: the unintended consequences on amateur basketball. The Sports Prof ("Rap Sheets and the Rap Generation") and Cal Lanier of Football Fans for Truth ("Fools Rule") also check in with excellent responses.